Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment

Judgment:

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
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			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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ORDER

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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J.B. Koshy, J.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
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		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
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		'respondent' => 'Johnny Mathew',
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	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '730923',
	(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(a) The name of any person-

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
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(i) is, without sufficient cause, entered in the register of members of a company, or

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
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		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
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		'respondent' => 'Johnny Mathew',
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	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '730923',
	(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
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(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
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(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
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		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
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		'respondent' => 'Johnny Mathew',
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	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '730923',
	(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(b) such orders as to costs as it thinks fit; and

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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(7) On any application under this section, the Tribunal-

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
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(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
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		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
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		'respondent' => 'Johnny Mathew',
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	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '730923',
	(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
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3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.

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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the Limitation Act, 1963 attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
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		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
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		'respondent' => 'Johnny Mathew',
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	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
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13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the Limitation Act, 1963 apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the Limitation Act, 1963. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '730923',
	(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.

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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.

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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the Limitation Act, 1963, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the Limitation Act, 1963, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the Limitation Act, 1963.

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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
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		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
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		'respondent' => 'Johnny Mathew',
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	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '730923',
	(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.

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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
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		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
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		'respondent' => 'Johnny Mathew',
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	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '730923',
	(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:

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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.

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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.

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                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
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		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
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		'respondent' => 'Johnny Mathew',
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	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
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Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '730923',
	(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.

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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.

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                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
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(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(a) discovery and inspection of documents or other material objects producible as evidence;

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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
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		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
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		'respondent' => 'Johnny Mathew',
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	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '730923',
	(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(d) examining witnesses on oath;

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(e) granting adjournments;

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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(f) reception of evidence on affidavits.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
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		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
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		'respondent' => 'Johnny Mathew',
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	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '730923',
	(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
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9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
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Our proposals are-

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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include - APP/View/Case/amp.ctp, line 144
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View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
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Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
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Accordingly, we would recommend as follows:

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                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
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		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
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		'respondent' => 'Johnny Mathew',
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	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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Sections 111 and 155 should be assimilated into a single statutory provision.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '730923',
	(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
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15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.

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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.

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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
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		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
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		'respondent' => 'Johnny Mathew',
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	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '730923',
	(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 76
$i = (int) 69
include - APP/View/Case/amp.ctp, line 144
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View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
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Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
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Thereafter, the Apex Court at paragraph 31 held as follows:

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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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$dataForView = array(
	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
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		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
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		'respondent' => 'Johnny Mathew',
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	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
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10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.

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	'title_for_layout' => 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '730923',
			'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
			'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
			'appellant' => 'Duroflex Ltd.',
			'authreffered' => '',
			'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
			'caseanalysis' => null,
			'casesref' => 'State of Goa v. Western Builders;',
			'citingcases' => '                     **                    **                         **',
			'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
			'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2006-11-09',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
			'judgement' => 'ORDER</p><p style="text-align: justify;">J.B. Koshy, J.</p><p style="text-align: justify;">1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p style="text-align: justify;">2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p style="text-align: justify;">111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p style="text-align: justify;">(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p style="text-align: justify;">(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p style="text-align: justify;">(4) If-</p><p style="text-align: justify;">(a) The name of any person-</p><p style="text-align: justify;">(i) is, without sufficient cause, entered in the register of members of a company, or</p><p style="text-align: justify;">(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p style="text-align: justify;">(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p style="text-align: justify;">(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p style="text-align: justify;">(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p style="text-align: justify;">(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p style="text-align: justify;">(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p style="text-align: justify;">(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p style="text-align: justify;">(b) such orders as to costs as it thinks fit; and</p><p style="text-align: justify;">(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p style="text-align: justify;">(7) On any application under this section, the Tribunal-</p><p style="text-align: justify;">(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p style="text-align: justify;">(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p style="text-align: justify;">5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p style="text-align: justify;">Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p style="text-align: justify;">4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p style="text-align: justify;">Thereafter, it was held as follows:</p><p style="text-align: justify;">13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p style="text-align: justify;">Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p style="text-align: justify;">5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p style="text-align: justify;">29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p style="text-align: justify;">6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p style="text-align: justify;">4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a>.</p><p style="text-align: justify;">7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p style="text-align: justify;">10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p style="text-align: justify;">Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p style="text-align: justify;">11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p style="text-align: justify;">The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p style="text-align: justify;">8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p style="text-align: justify;">On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p style="text-align: justify;">8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p style="text-align: justify;">It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p style="text-align: justify;">Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p style="text-align: justify;">10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p style="text-align: justify;">(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p style="text-align: justify;"> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p style="text-align: justify;">(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p style="text-align: justify;">(a) discovery and inspection of documents or other material objects producible as evidence;</p><p style="text-align: justify;">(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p style="text-align: justify;">(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p style="text-align: justify;">(d) examining witnesses on oath;</p><p style="text-align: justify;">(e) granting adjournments;</p><p style="text-align: justify;">(f) reception of evidence on affidavits.</p><p style="text-align: justify;">(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p style="text-align: justify;">The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p style="text-align: justify;">9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p style="text-align: justify;">14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p style="text-align: justify;">Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p style="text-align: justify;">Our proposals are-</p><p style="text-align: justify;">Accordingly, we would recommend as follows:</p><p style="text-align: justify;">Sections 111 and 155 should be assimilated into a single statutory provision.</p><p style="text-align: justify;">15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p style="text-align: justify;">16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p style="text-align: justify;">17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p style="text-align: justify;">Thereafter, the Apex Court at paragraph 31 held as follows:</p><p style="text-align: justify;">31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p style="text-align: justify;">[Emphasis supplied]</p><p style="text-align: justify;">We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p style="text-align: justify;">But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p style="text-align: justify;">10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
			'ratiodecidendi' => '',
			'respondent' => 'Johnny Mathew',
			'sub' => 'Company',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'duroflex-ltd-vs-johnny-mathew',
	'args' => array(
		(int) 0 => '730923',
		(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
	)
)
$title_for_layout = 'Duroflex Ltd Vs Johnny Mathew - Citation 730923 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '730923',
		'acts' => 'Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; <a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 195 and 196; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193 and 228; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 21',
		'appealno' => 'C.O. Appeal Nos. 21 and 35 of 2004',
		'appellant' => 'Duroflex Ltd.',
		'authreffered' => '',
		'casename' => 'Duroflex Ltd. Vs. Johnny Mathew',
		'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of  Petition for enhancement of maintenance  dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under Section 7(2)(a) and entertaining maintenance petition under Section 125 of Cr.P.C., Family Court cannot be deemed or treated as civil Court. Proceedings for maintenance before the Family Court under Section &(2)(a) is criminal in nature. [Kunhimohammammed v Nafeesa, 2003 (1) KLT 364; 2004 Cri LJ 1000 (Ker) Overruled]. 
Reference to Full Bench; Held, Single Judge cannot refer the case to Full Bench. He can refer the case to Division Bench. Power to refer to Full Bench is expressly reserved to Division Bench. Merely because a single Judge/Division Bench entertains another view or merely because another view is possible, the judgment shall not be distinguished.   -  --(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its 13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Failure to comply with any order visits the company with a fine.',
		'caseanalysis' => null,
		'casesref' => 'State of Goa v. Western Builders;',
		'citingcases' => '                     **                    **                         **',
		'counselplain' => ' Joseph Markose and; Mithun Markos, Advs.',
		'counseldef' => ' Philip T. Varghese and; Thomas T. Varghese, Advs.',
		'court' => 'Kerala',
		'court_type' => 'HC',
		'decidedon' => '2006-11-09',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.B. Koshy and; M.N. Krishnan, JJ.',
		'judgement' => 'ORDER</p><p>J.B. Koshy, J.</p><p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.</p><p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:</p><p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal</p><p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.</p><p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.</p><p>(4) If-</p><p>(a) The name of any person-</p><p>(i) is, without sufficient cause, entered in the register of members of a company, or</p><p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or</p><p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.</p><p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-</p><p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or</p><p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.</p><p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-</p><p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;</p><p>(b) such orders as to costs as it thinks fit; and</p><p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.</p><p>(7) On any application under this section, the Tribunal-</p><p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;</p><p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.</p><p>[Emphasis supplied]</p><p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:</p><p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.</p><p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.</p><p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....</p><p>Thereafter, it was held as follows:</p><p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.</p><p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.</p><p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:</p><p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.</p><p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:</p><p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.</p><p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:</p><p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.</p><p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:</p><p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.</p><p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.</p><p>[Emphasis supplied]</p><p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:</p><p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.</p><p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.</p><p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:</p><p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.</p><p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:</p><p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.</p><p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.</p><p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.</p><p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:</p><p>(a) discovery and inspection of documents or other material objects producible as evidence;</p><p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;</p><p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;</p><p>(d) examining witnesses on oath;</p><p>(e) granting adjournments;</p><p>(f) reception of evidence on affidavits.</p><p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.</p><p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.</p><p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:</p><p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:</p><p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.</p><p>Our proposals are-</p><p>Accordingly, we would recommend as follows:</p><p>Sections 111 and 155 should be assimilated into a single statutory provision.</p><p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.</p><p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.</p><p>[Emphasis supplied]</p><p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:</p><p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.</p><p>Thereafter, the Apex Court at paragraph 31 held as follows:</p><p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.</p><p>[Emphasis supplied]</p><p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .</p><p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.</p><p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)',
		'ratiodecidendi' => '',
		'respondent' => 'Johnny Mathew',
		'sub' => 'Company',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '730923',
	(int) 1 => 'duroflex-ltd-vs-johnny-mathew'
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$url = 'https://sooperkanoon.com/case/amp/730923/duroflex-ltd-vs-johnny-mathew'
$ctype = ' High Court'
$caseref = 'State of Goa v. Western Builders<br>'
$content = array(
	(int) 0 => 'ORDER',
	(int) 1 => '<p>J.B. Koshy, J.',
	(int) 2 => '<p>1. An application (appeal) was filed by the first respondent before the Company Law Board, South Region Bench under Section 111(2) of the Companies Act (for short 'the Act') as the company refused to register the transaction of 67,300 shares inherited by him from his deceased mother by virtue of a Will dated 21-12-1987. He filed an application on 25-7-2002 for registration of the transmission of the above shares. From a communication dated 31-5-2003 forwarded by the company he came to understand that the above application was rejected. Hence, application was filed under Section 111 of the Act with a petition to condone the delay of 45 days. The appellant company contended that the application for registration of transaction was made on 25-7-2002. Since no notice or communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant tiled an application to hold that appeal filed by first respondent is not maintainable as appeal under Section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under Section 111(2) is barred by limitation, this application can be entertained under Section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corporation of India Ltd. [ 1995] 83 Comp. Cas. 454 4 SCL 71. (CLB-Delhi) in these matters as remedies under Section 111(2) and Section 111(4) are alternate remedies and transfers are treated at par. It is the contention of the appellant that appeal was filed under Section 111(2). Therefore, limitation provided under Section 111(3) is applicable and CLB went wrong in treating the application under Section 111(4) also.',
	(int) 3 => '<p>2. First question to be considered is whether Section 5 of the Limitation Act is attracted to condone the delay for sufficient cause in filing the appeal under Section 111(2). It was argued vehemently that CLB is not a Court and time prescribed by Section 111(3) cannot be extended by using power under Section 5 of the Limitation Act. Section 111 of the Companies Act reads as follows:',
	(int) 4 => '<p>111. Power to refuse registration and appeal against refusal.--(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the dale on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal',
	(int) 5 => '<p>(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Tribunal against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.',
	(int) 6 => '<p>(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company.',
	(int) 7 => '<p>(4) If-',
	(int) 8 => '<p>(a) The name of any person-',
	(int) 9 => '<p>(i) is, without sufficient cause, entered in the register of members of a company, or',
	(int) 10 => '<p>(ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or',
	(int) 11 => '<p>(b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under Sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register.',
	(int) 12 => '<p>(5) The Tribunal, while dealing with an appeal preferred under subsection (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order-',
	(int) 13 => '<p>(a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or',
	(int) 14 => '<p>(b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.',
	(int) 15 => '<p>(6) The Tribunal, while acting under Sub-section (5), may, at its discretion, make-',
	(int) 16 => '<p>(a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just;',
	(int) 17 => '<p>(b) such orders as to costs as it thinks fit; and',
	(int) 18 => '<p>(c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares.',
	(int) 19 => '<p>(7) On any application under this section, the Tribunal-',
	(int) 20 => '<p>(a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register;',
	(int) 21 => '<p>(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.',
	(int) 22 => '<p>[Emphasis supplied]',
	(int) 23 => '<p>3. Under Section 5 of the Limitation Act, delay can be condoned for sufficient reasons by a Court. An appeal or any application can be admitted after the prescribed period if the applicant or appellant satisfies the Court that he had sufficient cause in not filing the appeal within such period, Section 5 of the Limitation Act reads as follows:',
	(int) 24 => '<p>5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.',
	(int) 25 => '<p>Explanation--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.',
	(int) 26 => '<p>4. It is the contention of the appellant that the CLB is not a Court and, therefore, Section 5 of the Limitation Act is not applicable as this is not an application or appeal filed before the Court. Appellant also relied on the decision of the Apex Court in Prakash H. Jain v. Ms. Marie Fernandas : AIR2003SC4591 wherein the Apex Court held that competent authority under the Maharashtra Rent Control Act is not a Court and have no power to condone the delay in filing the application. The Supreme Court. held as follows:.It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority consituted thereunder is not 'Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either makingthe provisions of the <a>Limitation Act, 1963</a> attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act....',
	(int) 27 => '<p>Thereafter, it was held as follows:',
	(int) 28 => '<p>13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created....Therefore, the competent authority constituted under that Act was mere statutory authority constituted and consideringits powers, it. was held that it cannot be treated as a 'Court'. In Sakuru v. Tanaji : 1985(22)ELT327(SC) which was followed in the above case, the Supreme Court held that Section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act before it is amended in 1979 as the above authority cannot be treated as Court. The Supreme Court held in that case that Section 5 of the <a>Limitation Act, 1963</a> apply only to proceedings in Court and further held as follows:On a plain reading of the section it. is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to 'computation of the period of limitation'. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part. III of the <a>Limitation Act, 1963</a>. Section 5 is not a provision dealing with 'computation of the period of limitation'. It is only after the process of computation is completed and it. is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.',
	(int) 29 => '<p>Therefore, because of that reasoning, the Apex Court held that Section 5 is not applicable before the appellate authority constituted under that Act.',
	(int) 30 => '<p>5. Counsel for the respondent, on the other hand, argued that the Court need not be a Court established under the Code of Civil Procedure especially in view of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act reads as follows:',
	(int) 31 => '<p>29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4to 24 inclusive shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.',
	(int) 32 => '<p>6. A Full Bench of this Court in State of Kerala v. Ayilammal Syamala Thamburatti : AIR1980Ker82 held that provisions of Sections 4to 24 will apply to applications filed before various Tribunals under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Full Bench held as follows:',
	(int) 33 => '<p>4. In the light of the above discussion it has to be held, and we hold, that Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Sections 4to 24 of the <a>Limitation Act, 1963</a>, and so, the period of 60 days limitation prescribed in Section 8A has to be computed by applying Sections 4to 24 (inclusive) of the <a>Limitation Act, 1963</a>.',
	(int) 34 => '<p>7. The Hon'ble Apex Court considered this point in Mukri Gopalan v. Chcupilat Puthanpurayil Aboobacker : AIR1995SC2272 . In that case, the Court was considering whether Section 5 of the Limitation Act will apply in fuing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period o( limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under Section 18. It was held in such circumstances that Section 5 of the Limitation Act is applicable to appellate authority which has got all the trappings of the Court though it is not a Court established under the Code of Criminal Procedure and observed as follows:',
	(int) 35 => '<p>10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribed nil period of limitation for such an appeal. It is now well-settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099. When the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permils the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.',
	(int) 36 => '<p>Thereafter, the Apex Court came to the conclusion that Section 5 of the Limitation Act will apply for the following reasons:',
	(int) 37 => '<p>11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of Sections 4to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied.',
	(int) 38 => '<p>The Hon'ble Apex Court also held as follows:.There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed wholly by Civil Procedure Code.',
	(int) 39 => '<p>[Emphasis supplied]',
	(int) 40 => '<p>The Court further held that appellate authority constituted under the Rent Act is a Court for the purpose of Limitation Act because appellate authority is not a persona designata. The Court held as follows:',
	(int) 41 => '<p>8. Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court.',
	(int) 42 => '<p>On these reasonings, the Supreme Court at paragraph 22 held that Section 5 of the Limitation Act will apply. While coming to the above conclusion, the Supreme Court analysed various previous decisions of the Court.',
	(int) 43 => '<p>8. In Brajnandan Shi ha v. Jyoti Narain AIR 1956 SC 66 it was observed by the Supreme Court as follows:',
	(int) 44 => '<p>It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a Judicial pronouncement.',
	(int) 45 => '<p>Here, the CLB is vested with judicial and curative powers, while deciding of applications under Section 111 of the Companies Act. Apart from the trappings of the Court, it has got power to take decision or a power which has got essential tests of finality and authoritativeness like a judicial pronouncement, even though on question of law further appeal can be filed before the High Court. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1 A) and (4B) to (4D) reads as follows:',
	(int) 46 => '<p>10E. Constitution of Board of Company Law Administration.-(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration.',
	(int) 47 => '<p>(1 A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law.',
	(int) 48 => '<p> ** ** **(4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Bench to exercise and discharge such of the Board's powers and functions as may be specified in the order; and every order made or act done by a Bench in exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board.',
	(int) 49 => '<p>(4C) Every Bench referred to in Sub-section (4B) shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:',
	(int) 50 => '<p>(a) discovery and inspection of documents or other material objects producible as evidence;',
	(int) 51 => '<p>(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;',
	(int) 52 => '<p>(c) compelling the production of documents or other material objects producible as evidence and impounding the same;',
	(int) 53 => '<p>(d) examining witnesses on oath;',
	(int) 54 => '<p>(e) granting adjournments;',
	(int) 55 => '<p>(f) reception of evidence on affidavits.',
	(int) 56 => '<p>(4D) Every Bench shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and for the purpose of Section 196 of that Code.',
	(int) 57 => '<p>The above provisions would show that Bench of the Company Law Board has not only the trappings of the Courts but vested with judicial powers while deciding an application under Section 111 of the Companies Act.',
	(int) 58 => '<p>9. Power of the Company Law Board while dealing with Section 111 of the Companies Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. [1994] 2 SCL 52 (CLB-Delhi). After considering the powers, a three-member Bench of the Supreme Court found that it is a Court for the purpose of trial of offence relating to transaction in Securities Act, 1992. Power of rectification under Section 111 before the amendment was exercised by the Court under Section 155. Noticing the history of enactment of Section 111, it was observed as fallows:',
	(int) 59 => '<p>14, Section 111, as set out above, was incorporated in the Companies Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said:',
	(int) 60 => '<p>Under the existing law, there are two remedies open to an aggrieved person- to file an appeal under Section 111, or to apply to the Court for rectification of the share register under Section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board - as proposed to be constituted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155.',
	(int) 61 => '<p>Our proposals are-',
	(int) 62 => '<p>Accordingly, we would recommend as follows:',
	(int) 63 => '<p>Sections 111 and 155 should be assimilated into a single statutory provision.',
	(int) 64 => '<p>15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for.',
	(int) 65 => '<p>16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved thereby under the provisions of Section 10F.',
	(int) 66 => '<p>[Emphasis supplied]',
	(int) 67 => '<p>Thereafter, Court held that notwithstanding the term 'appeal' is used in Sub-section (2), it should be considered as an application. At paragraph 17, it was observed as follows:',
	(int) 68 => '<p>17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the CLB an 'appeal', Sub-section (4) requires the person aggrieved to apply, Sub-section (5) speaks of it as an 'appeal' or an 'application', Sub-section (7) as an 'application' and subsection (10) as an 'appeal or application', which shall be made 'by a petition in writing'. The words 'appeal' and 'application' in the context of the provisions of Section 111 have the same meaning. Plainly, it is an application that has to be made.',
	(int) 69 => '<p>Thereafter, the Apex Court at paragraph 31 held as follows:',
	(int) 70 => '<p>31. Now, under Section 111 of the Companies Act as amended with effect from 31-5-1991, the CLB performs the functions that were theretofore per formed by Courts of civil judicature under Section 155. It is empowered to make order directing rectification of the company's register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register; and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of Section 9A of the Special Act.',
	(int) 71 => '<p>[Emphasis supplied]',
	(int) 72 => '<p>We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata, the Company Law Board functions as a Court while dealing with an application under Section 111. Therefore, time-limit prescribed by Section 111(3) for application filed under Section 111(2) can be extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5-State of Goa v. Western Builders : AIR2006SC2525 .',
	(int) 73 => '<p>But, in Companies Act, there is no express provision in extending any of the provisions of Limitation Act. Even for applications filed under Section 111(4) merely because no time-limit is provided under that section, it cannot be stated that application can be filed with undue delay. If there is unexplained long delay, application for rectification can be rejected. The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable, Section 5 of the Limitation Act also will be applicable.',
	(int) 74 => '<p>10. Apart from the above, CLB found that if the application filed under Section 111(2) is not maintainable it can be treated as an application under Section 113(4)for which no time-limit is prescribed. In Citi Bank NA case (supra), it was held that Sections 111(2) and 111(4) are alternate remedies and since they can be treated at par, the application can be treated as an application under Section 111(4). The Apex Court in Canara Bank's case (supra) observed that application under Sections 111 and 155 can be made as alternate remedies and that was assimilated in Section 111 in view of the recommendation of the Sachar Committee report. On going through the application filed by the respondent, it can be seen that the above application can be treated as an application for rectification under Section 111(4) as was done in Citi Bank NA's case (supra). Sufficient reasons for condoning delay, depends upon factual situation and on the basis of the finding of facts, it was held that delay was fully explained and there are sufficient reasons to condone the delay, so delay is explained CLB only held that application is maintainable. It is for the CLB to decide whether first respondent's application has merit or not, whether shares should be transferred as applied and rectification of register shall be carried out etc. after adducing evidence and further hearing. We see no ground to interfere with the order of the Company Law Board and both appeals are dismissed.<p>',
	(int) 75 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 76
$i = (int) 75
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Subject	Company
Court	Kerala High Court
Decided On	Nov-09-2006
Case Number	C.O. Appeal Nos. 21 and 35 of 2004
Judge	J.B. Koshy and; M.N. Krishnan, JJ.
Reported in	(2008)2CompLJ314(Ker); [2007]75SCL569(Ker)
Acts	Companies Act - Sections 10, 10E(1), (1A), (4B) to (4D), 10F, 18, 111, 111(1), 111(2), 111(3), 111(4), 111(5), 111(7), 111(10), 113(4), 155 and 155(1); Limitation Act, 1963 - Sections 3, 4 to 24, 29(2) and 137 - Article 137; Maharashtra Rent Control Act - Sections 18; Telangana Area Tenancy and Agricultural Lands Act; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 8A; Kerala Buildings (Lease and Rent Control) Act, 1965; Companies (Amendment) Act, 1988; Companies (Second Amendment) Act, 2002; Securities Act, 1992; Special Court Act - Sections 9A; Code of Criminal Procedure (CrPC) , 1973 - Sections 195 and 196; Indian Penal Code (IPC), 1860 - Sections 193 and 228; Code of Civil Procedure (CPC) , 1908 - Order 21
Appellant	Duroflex Ltd.
Respondent	Johnny Mathew
Appellant Advocate	Joseph Markose and; Mithun Markos, Advs.
Respondent Advocate	Philip T. Varghese and; Thomas T. Varghese, Advs.
Disposition	Appeal dismissed
Cases Referred	State of Goa v. Western Builders

Duroflex Ltd. Vs. Johnny Mathew - Court Judgment